A Broad Market Approach to Antitrust Product Market Definition in Innovative Industries

A Broad Market Approach to Antitrust Product Market Definition in Innovative Industries Andrew C. Hruska Detecting market power is crucial to antitrust enforcement, and agencies discern market power by examining concentration in a defined market. This Note argues that the current restrictive approach to market definition leads to overenforcement because agencies fail to account for the full range of restraints on market power. This problem can lead to particularly skewed market definitions in the context of innovation and cooperation among multiproduct firms. Innovation creates uncertainties about market structure and the course of development. Multi-product firms use innovative technologies as part of a larger mix of products, many of which are commoditized and interchangeable. A broader market definition approach would alleviate the problem of overenforcement by including the spectrum of partial substitutes and emerging replacements that the "smallest market" approach can ignore. An example of this definition problem arose with the joint venture between International Business Machines Corporation ("IBM") and Apple Computer Corporation ("Apple") to produce a new type of computer software. Announced in the summer of 1991, this joint venture, called Taligent, and four others between IBM and Apple collectively signalled a dramatic realignment of forces in the computer industry.' Taligent eventually received Federal Trade Com- mission (FTC) approval, but only after an investigation lasting several months.' Although Taligent survived its antitrust examination, similar ventures in the high-technology sector might well fail the tests of market concentration under the current guidelines for reviewing business combinations.3 The basic problem with the current Merger Guidelines is their method of defining the relevant product market. The current process is biased toward unjustifiably narrow market definitions because it requires the enforcing agency to begin its investigation by choosing the smallest market in which the firms' products com- 1. Of the other ventures between IBM and Apple, only one, Kaleida, has progressed significantly. Kaleida will produce multimedia computer software. Andrew Gore, The Grand Alliance: Apple, IBM Still Laying Foundationfor Future, MACWEEK, July 13, 1992, at 59. 2. The FTC approved Taligent on January 13, 1992. 358 FTC: WATCH (Jan. 13, 1992), available in LEXIS, Trade Library, FTC: Watch file [hereinafter FTC Approval]. 3. DEPARTmeNT OF JUSTICE AND FEDERAL TRADE COMMISSION, HORIZONTAL MERGER GUIDELINES (1992), reprinted in 4 Trade Reg. Rep. (CCH) 13,104 [hereinafter MERGER GUIDELINES]. The Yale Law Journal [Vol. 102: 305 pete. If the concentration (as defined by Herfindahl-Hirschman Indices4 ("HHI's")) in this market rises above an arbitrarily defined level, the enforcing agency is likely to block the combination or order divestiture by one of the firms to preserve competition. Because the thresholds for expanding the relevant product market are too high, the calculation exaggerates the concentration in the market, and therefore overstates the combining firms' ability to raise prices above cost. A "broad market" approach to defining the initial relevant product market would remove some of the enforcing agency's discretion to make overly narrow market definitions by forcing the agency to consider the entire industry, especially competing products that the restrictive "smallest market" test might disre- gard. The agencies' current approach incorporates some of the elements of such a "broad market" approach, but does so without clear standards to guide businesses and without safeguards against a return to politicized antitrust enforcement. Part I of this Note sketches the history of antitrust enforcement and market definition up through the present and examines recent (and some pending) reform efforts. Part II suggests a new "broad market" approach to market definition and points out the benefits of this clearer standard in reduced fear of arbitrary enforcement. Part III analyzes the IBM-Apple joint venture and the structure of the markets in which it will compete. In so doing, Part III illustrates the problems with the current market definition approach. I. ANTITRUST HISTORY AND REFORM A. History of Antitrust and Market Definition Throughout the 1980's, the Reagan Justice Department rarely challenged 5 mergers, joint ventures, and joint licensing agreements on antitrust grounds. In the context of the last century of antitrust enforcement, however, the past decade stands out as a brief calm amidst regulatory storms that have swept the industrial landscape since the enactment of the Sherman Antitrust Act in 1890.6 Since its inception, the Sherman Act has been a political tool, allowing early trust-busting legislators to attack large industrial conglomerates guilty of 4. The Herfindahl-Hirschman Index (HI) is a measure for industry concentration showing the sum of the squares of the market shares for firms in the industry. Thus, a perfect monopoly would show an Hill of 10,000 (i.e., 100 times 100). The Department of Justice (DOJ) and the FTC will likely challenge combinations in a market with an HHI above 1800. MERGER GUIDELINES, supra note 3, § 1.51(c). These measures are still prey to errors in calculating shares and, most importantly, in defining the relevant product market. 5. See Charles E. Mueller, How Antitrust Fell as Economics Rose: 'Mutiny' at Justice and the FTC, 22 ANTmITUST L. & ECON. REv. 1 (1990); Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90 COLUM. L. REV. 1805, 1809 (1990). 6. 15 U.S.C. §§ 1-7 (1988). 1992] Antitrust Product Market Definition restraining competition. 7 During the New Deal, the government frequently bypassed the antitrust laws in coordinating industry through the "codes of fair competition" under the National Recovery Administration. In the heyday of antitrust enforcement during the 1960's, the Government successfully enjoined several mergers involving firms controlling less than 10% of the market. 9 In the waning days of the Johnson Administration, the Department of Justice brought a monopolization suit against IBM based on unrealistically narrow product market definitions, though the case was ultimately dropped. 10 B. The New Antitrust Boom Following the IBM case, in 1982 and 1984, the Antitrust Division and the FTC revised their stated merger policies on the eve of a large merger boom. Today, as a result of a confluence of factors, including reaction to that period of high merger activity and bitterness over the current recession, calls for more vigilant and severe antitrust enforcement have increased. The Supreme Court's recent decision in Eastman Kodak Co. v. Image Technical Services, Inc., though not a merger case, appears to encourage this trend." In the 1990's, the Justice Department's Antitrust Division and, especially, the FTC have already increased enforcement efforts, 12 and their actions have inspired private plaintiffs as 3 well. Much of the renewed enforcement activity has focused on the computer industry, with FTC investigations of the IBM/Apple joint ventures, the Open Software Foundation (a standard-setting group), Intel Corporation (the largest microprocessor manufacturer), and Microsoft Corporation (the largest producer of operating systems software). Private complainants-Advanced Micro Devices 7. These attacks resulted in civil enforcement actions by the Justice Department that dismantled the railway oligopoly (Northern Sec. Co. v. United States, 193 U.S. 197 (1904)), the oil trust (Standard Oil Co. v. United States, 221 U.S. 1 (1911), and attempted to unseat U.S. Steel from its dominant position in the steel industry (United States v. United States Steel Corp., 251 U.S. 417 (1920)). 8. The National Recovery Administration grew out of the National Industrial Recovery Act, H.R. 5755, 73d Cong., Ist Sess., 48 Stat. 195 (1933), which the Supreme Court declared unconstitutional in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). 9. See, e.g., United States v. Von's Grocery Co., 384 U.S. 270 (1966); Brown Shoe Co. v. United States, 370 U.S. 294 (1962). 10. FRANKLIN FISHER ET AL., FOLDED, SPINDLED AND MUTILATED: ECONOMIC ANALYSIS AND U.S. V. IBM 60-63 (1983). 11. 112 S. Ct. 2072 (1992). The Court dismissed Kodak's claim for summary judgment in a suit in which independent servicers of Kodak equipment charged Kodak with an illegal tying arrangement. Concerned with this decision and the rise in the FTC's enforcement activism, one commentator described these events as "an ominous and surprising sign that the antitrust reforms of the 1980s and the economic benefits they wrought are under serious attack." Charles F. Rule, Back to the Dark Ages of Antitrust,WALL ST. J., June 17, 1992, at A17. 12. Interview: Professor Eleanor M. Fox, ANITrRUST, Fall/,inter 1991, at 8; Robert Pitofsky, The Renaissance of Antitrust, 45 REC. Assoc. B. CrrY N.Y. 851, 853 (1990) ("Now-abruptly-the situation has changed.... [Antitrust] cases are being filed and investigations initiated into areas of business behavior that were immune during the Reagan years."); Andrew Pollack, Antitrust Actions on the Rise Again, N.Y. TIMES, Nov. 10, 1991, § 3, at 8 ("[O]ne reason for the resurgence of antitrust investigations is simply that Federal regulators are becoming more aggressive in general after eight years of little enforcement... 13. See, e.g., Pollack, supra note 12, at 8. The Yale Law Journal [Vol. 102: 305 (AMD), Cyrix Corporation,

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